Bombay High Court
Dhansingh Gokulsingh Bayas vs The State Of Mah on 7 March, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 641 OF 2012
Dhansingh s/o Gokulsingh Bayas,
age 48 years, occ. Labour,
R/o Dharangaon, Tq. Dharangaon,
District Jalgaon ...APPELLANT
[Orig. Accused]
VERSUS
The State of Maharashtra
ig ...RESPONDENT
[Orig. Complainant]
***
Mr. Pratap Mandlik, advocate h/f
Shri K.C.Sant, Advocate for the Appellant
Mr. K.S.Patil, APP for Respondent/State
***
CORAM : A.V.NIRGUDE & INDIRA K. JAIN, JJ.
DATED : MARCH 7, 2016
JUDGMENT : [Per Indira K.Jain, J.]
This is an appeal preferred by original accused against
the judgment and order dated 1.10.2012 passed by the learned
Additional Sessions Judge, Jalgaon in Sessions Case No. 131 of
2009. By the said judgment and order, learned Additional Sessions
Judge convicted appellant for the offence punishable under Section
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302 of the Indian Penal Code and sentenced him to suffer
imprisonment for life and to pay a fine of Rs.1,000/-, in default
rigorous imprisonment for six months. Appellant was, however,
acquitted of the offence punishable under Section 498-A of the
Indian Penal Code.
2] For the sake of convenience we shall refer appellant in
his original status as accused as he was referred before the trial
court.
3] Prosecution case briefly stated is as under : -
(i) Laxmibai was the wife of appellant. She was
married to accused before 20 years of the incident.
Couple was blessed with three sons.
(ii) Incident occurred on 24.5.2009 at around 3.30 p.m.
at the house of accused at Dharangaon, District Jalgaon.
That time Laxmibai was preparing tea. Accused came
and prevented her from preparing tea. He threatened
Laxmibai to kill her, poured kerosene on her person,
brought match stick and set her on fire. She sustained
burns. The elder brother of accused shifted victim
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Laxmibai to Rural Hospital, Dharangaon.
(iii) An intimation of admission of burn patient was given
to police station, Dharangaon. PW 1 PSI Rahul Pagare
rushed to the hospital. He inquired from the Medical
Officer whether patient was in a fit state of mind to give
her statement. After the Medical Officer certified, he
recorded statement of Laxmibai in which she narrated that
her husband prevented her from preparing tea,
threatened to life, poured kerosene and set her on fire.
(iv) On the basis of statement recorded by PW 1 PSI
Pagare Crime No. 97 of 2009 was registered against the
accused for the offences punishable under Sections 307,
498-A, 504 and 506 of the Indian Penal Code. Initial
investigation was taken over by PSI Pagare. He visited
the scene of offence and recorded spot panchanama.
From the spot, burnt pieces of clothes, a plastic can
containing kerosene, burnt necklace, half burnt match
stick and pieces of broken bangles were seized. A sketch
of the scene of incident was prepared. Accused was
arrested and sent for medical examination.
(v) On 24.5.2009 PW 6 Special Executive Magistrate
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Lata More was requested to record statement of victim.
Accordingly, Special Executive Magistrate visited the
hospital. She inquired from the Medical Officer on duty
regarding condition of the patient to give statement. After
Medical Officer certified that she was fit to give her
statement, PW 6 Lata More recorded dying declaration of
Laxmibai.
(vi) During investigation, statements of several
witnesses including PW 2 Kalpesh minor son of the victim
and accused were recorded. Laxmibai succumbed to
injuries on 29.5.2009. After her death, offence under
Section 302 of the Indian Penal Code was added.
Inquest panchanama was drawn. It was followed by the
postmortem examination. Seized muddemal was sent to
Chemical Analyser.
(vii) On completing investigation, charge sheet was
submitted to the court of Judicial Magistrate, First Class,
Dharangaon, who in turn committed the case for trial to
the Court of Sessions.
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4] Charge came to be framed against the accused at Exh.3
for the offences punishable under Sections 498-A and 302 of the
Indian Penal Code. He pleaded not guilty to the charge and claimed
to be tried. The factum of relationship between accused and victim
was, however, not in dispute.
5] Prosecution examined in all nine witnesses to
substantiate the guilt of accused. After going through the evidence
adduced by prosecution, learned Additional Sessions Judge
convicted and sentenced the accused as stated in paragraph no.1
above. Being aggrieved, this appeal has been preferred by the
accused.
6] We have heard the learned counsel for the parties.
Considering the facts and circumstances of the case, submissions
made on behalf of the parties, reasoning recorded by the trial court
and the evidence on record, for the below mentioned reasons we are
of the opinion that appellant poured kerosene on the person of his
wife Laxmibai and set her on fire.
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7] Conviction of appellant is mainly based on two written
and one oral dying declarations. Needless to state that in order to
pass the test of reliability a dying declaration has to be subjected to a
very close scrutiny keeping in view the fact that statement has been
made in the absence of Accused who had no opportunity of testing
the veracity of the statement by cross-examination. It is a settled law
that once the Court comes to a conclusion that dying declaration was
the truthful version as to the circumstances of death and the
assailant of victim no further corroboration is required to such a
dying declaration. Keeping in view these legal principles in mind we
now advert to the dying declarations on which reliance is placed by
the prosecution.
8] The first dying declaration was recorded by PW 1 PSI
Rahul Pagare on 24.5.2009. PSI Pagare was attached to
Dharangaon police station at the relevant time. He was present in
the police station. PSO Dharangaon informed him that one lady by
name Laxmibai Dhanusing Bayas was admitted to Rural Hospital,
Dharangaon in burnt condition and he should go and record her
statement. It is stated by PSI Pagare that he visited the hospital. He
inquired from the Medical Officer in which ward Laxmibai was
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admitted and whether she was in a condition to give her statement.
It appears from the evidence of PSI Pagare that after doctor certified
that patient was in a condition to give her statement he recorded
statement of Laxmibai as per her say. The said statement is at
Exh.23.
9] It can be seen from dying declaration (Exh.23) that
Laxmibai disclosed that on 24.5.2009 at about 9.00 a.m. she came
back to Dharangaon from Surat. She cleaned the house. Her
husband Danusing and son Kalpesh were at home. At around 3.30
p.m. when she was about to prepare tea her husband prevented her
from doing so. He picked up quarrel with her, brought a plastic can
containing kerosene, poured kerosene on her person, ignited a
match stick and set her on fire by uttering that he would not keep her
alive.
10] The evidence of PW 1 PSI Pagare particularly regarding
fitness of the patient to give her statement is corroborated by PW 8
Dr. Pandurang Sapkale. Dr. Sapkale was Medical Officer on duty
when Laxmibai was admitted to the hospital at 4.40 p.m. in burnt
condition on 24.5.2009. It is stated by Dr. Sapkale that immediately
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after admission of the patient he informed Dharangaon police and
started giving treatment to the patient. It can be seen from the
evidence of Dr. Sapkale that at 5.30 p.m. police officer came and
inquired with him about the condition of patient to give her statement.
It is stated by Dr. Sapkale that he examined the patient and found
that she was conscious, well oriented and was in a fit condition to
give her statement. Accordingly, he made an endorsement on the
statement and informed the police that the patient was fit to give her
statement.
11] So far as second dying declaration is concerned,
evidence of PW 6 Special Executive Magistrate Smt. Lata More and
PW 7 Dr. Shivdas Chavan is important. According to PW 6 Lata
More, she received intimation from police on 24.5.2009 to record
statement of Laxmibai Danusing Bayas a patient admitted in Civil
Hospital, Jalgaon. On receiving intimation she visited Civil Hospital,
Jalgaon at around 9.00 p.m. on the same day. She met the Medical
Officer and inquired from him regarding condition of the patient to
give her statement. After doctor examined the patient and told her
that patient was fit to give her statement, PW 6 Special Executive
Magistrate recorded statement of Laxmibai. The said statement is
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proved at Exh.45. In this dying declaration also Laxmibai narrated
the manner of incident in the same way as she stated before PW 1
PSI Pagare.
12] The evidence of PW 6 Lata More is supported by the
Medical Officer PW 7 Dr.Chavan who was attached to Civil Hospital,
Jalgaon at the relevant time. It is stated by Dr.Chavan that Special
Executive Magistrate visited the hospital. She inquired from him
whether patient was fit to give her statement. He examined the
patient and then made an endorsement to the effect that patient was
able to make her statement.
13] Commenting upon the dying declarations Exhs. 23 and
Exh.45, learned counsel for the appellant Mr. Mandlik vehemently
contended that there is variance in both the dying declarations, and
therefore, it was not proper for the trial court to rely upon the same.
Learned counsel would submit that in the first dying declaration
victim had stated regarding presence of her son, whereas in the
second dying declaration presence of son had disappeared which
makes the dying declarations doubtful.
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14] With the assistance of the learned counsel for the
parties,we have carefully examined evidence of material witnesses -
PW 1 PSI Pagare, PW 8 Dr.Sapkale, PW 6 Lata More and PW 7 Dr.
Chavan. We find both the dying declarations consistent in material
particulars and particularly regarding manner of occurrence of the
incident. Nothing could be elicited in the cross-examination of the
above witnesses to disbelieve their testimonies. Merely because in
one dying declaration victim stated regarding presence of her son
and in another dying declaration she omitted the same, would not be
fatal to the prosecution case and only on that ground dying
declarations cannot be said to be doubtful or suspicious.
15] As regards oral dying declaration, prosecution has relied
upon the evidence of PW 9 SDPO Samadhan Pawar. He received
further investigation from PSI Pagare. On receiving investigation on
25.5.2009 he visited the hospital and recorded statement of
Laxmibai after confirming from the doctor her condition to give her
statement. He, however, did not obtain signature or thumb
impression of the patient as her statement was already recorded on
earlier occasions. The trial court has not given much importance to
this dying declaration for want of signature or thumb impression of
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the victim. We too would keep the same out of consideration as we
have no reason to differ from the view taken by the trial court.
16] In addition to the dying declarations Exh. 23 and Exh.45,
there is one more reason to accept the prosecution case and that is
the absence of plausible explanation from the side of accused to
point out the circumstances under which Laxmibai sustained burns.
Accused does not dispute his presence in the house at the time of
occurrence of incident in the after noon. Under Section 106 of the
Indian Evidence Act it was for the accused to explain the
circumstances in which Laxmibai sustained 85 per cent burns.
Failure on the part of the accused to explain the circumstances tilts
in favour of prosecution and further negatives his defence of false
implication.
17] It is pertinent to note that victim was admitted to hospital
by her elder brother-in law. Accused did not bother to take her to
hospital. He did not even think it fit to inform the police. He did
nothing even after his wife received severe burns. This post conduct
of accused speaks volumes and substantiates the prosecution
version that accused and accused alone was responsible for causing
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death of his wife.
18] Thus, on appreciation of evidence of material witnesses
and placing reliance on both the consistent dying declarations Exhs.
23 and 45 we are of the opinion that there is sufficient evidence to
prove beyond reasonable doubt that accused poured kerosene on
the person of his wife Laxmibai and set her on fire which resulted in
her death. In this premise, we find no merit in the appeal.
19] Criminal Appeal No. 641 of 2012 stands dismissed.
[ INDIRA K. JAIN, J.] [A.V.NIRGUDE, J.]
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